STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACETRAC PETROLEUM, INC., )

)

Petitioner, )

and )

) McDONALD'S CORPORATION, INC. and )

CHECKER'S DRIVE-IN RESTAURANTS, ) CASE NO. 94-6741RP INC., )

)

Intervenors. )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

FINAL ORDER

A hearing was held in this case in Tallahassee, Florida, on January 12, 13,

30 and 31, and February 3, 6 and 13, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Victor Barrios, Esquire

Ellen Chadwell, Esquire Beck, Spalla & Barrios, P.A. 1026 East Park Avenue Tallahassee, Florida 32301

For Respondent: Pamela S. Leslie, Esquire

Paul Sexton, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether the Department's proposed amendment to Chapter 14-96, F.A.C. is an unlawful exercise of delegated legislative authority.

PRELIMINARY MATTERS

By undated Petition filed with the Division of Administrative Hearings on December 1, 1994, Ractrac Petroleum, Inc., seeks to have Proposed Rule Chapter 14-96, F.A.C., or various subsections thereof declared invalid exercises of delegated legislative authority in that the rule (1) has exceeded the Department's rulemaking authority, (2) attempts to enlarge the specific

provisions of certain cited statutory provisions, (3) is vague, and (4) attempts to arbitrarily vest unbridled authority in the Department. The hearing was scheduled to commence on January 6, 1995 and commenced as scheduled, after an active pre-hearing practice during which, inter alia, McDonald's Corporation, Inc., and Checkers Drive-In Restaurants, Inc., were granted status as Intervenors.

At the hearing, Petitioner presented the testimony of Max E. McBrayer, Jr., Racetrac Petroleum's Vice President for Engineering and Design; John H. Beck, an attorney; Gary H. Sokolow, the Department's Public Transportation Manager; George Gilhooley, a professional engineer with the Department; Ingrid Leuchtenmueller, John T. Dyal and Preston Toole, District Permitting Engineers;

A. R. Dunlop, Jr., a professional engineer and an expert in civil and traffic engineering; and Brant Hargrove, an attorney formerly with the Department. Petitioner also introduced Petitioner's Exhibits 1 - 7, 9, 10, 12, 13, and 15 -

22. Petitioner's Exhibits 8, 11, 14 and 23 were marked but not admitted.

Respondent presented the testimony of Mr. Sokolow; Dr. Virgil G. Stover, professor of engineering and an expert in the fields of civil engineering, traffic and transport engineering, roadway design, traffic operations, transportation planning, land use planning, and access management; Dr. Peter S. Parsonson, an expert in traffic engineering, traffic safety engineering, traffic operations design, and geometric design; Kenneth M. Towcimak, Director of the Department's Office of Right-of-way; Michael J. Tako, the Department's District I Access Management Engineer; and Marcus Walworth, a professional engineer in the Department's Traffic Operations Office. Respondent also introduced Respondent's Exhibits A through D and G 0through X. Respondent's Exhibits E and F were offered but not admitted.

A transcript of the proceedings was furnished and subsequent to the receipt thereof, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. The Proposed Findings of Fact submitted by both parties were incorporated in post hearing submissions which also included argument and citations of law. Counsel for Petitioner also enclosed with its proposal additional documentary matters including a Gubernatorial Proclamation and proposed legislation. Also included within argument were comments relating to these documents and reference to matters not presented at hearing. Counsel for the Department moved that Petitioner's post hearing submittal be stricken in its entirety. A hearing, attended by counsel for both parties, was held on the motion. At the hearing, the undersigned denied the Motion to Strike the entire submittal, but noted that the additional documents and references thereto and to matters not presented at the hearing on the merits would be stricken and no consideration given to them in the preparation of this Final Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Department of Transportation, State of Florida, was the state agency responsible for the promulgation, within the limits of its delegated legislative authority, of administrative rules governing the construction and operation of public highways within the state.

   
   

2. The Department's Notice of Rulemaking to amend Chapter 14-96, F.A.C., was published in the November 10, 1994 edition of the Florida Administrative Weekly. The Department proposed to substantially amend the provisions of Rules 14-96.001, .0011, .002, .003, .004, .005, .007, .008, .009, .011, .012, .015; to

   adopt new Rules 14-96.0121 and 14-96.016; and to repeal Rules 14-96.0031, .006,

   .010, .013, and .014. Forms were also to be incorporated into the rules by reference.

   
   

3. Racetrac Petroleum, Inc., (Racetrac), which, by stipulation, the Respondent agrees has standing in general to contest this rule, operates 41 properties in Florida. Approximately 90 percent of these are located on the state highway system. There were, at the time of the hearing, two sites under construction and eight more in the permitting process. Future plans call for further development with as many as one hundred sites under consideration.

   
   

4. Factors considered by Racetrac when it looks at property during site acquisition include traffic counts and access to major thoroughfares and to the roads which abut the property. There are also factors considered in determining the continued development of a specific site. These include the risk to investment capital, and the potential for future reduction in access to the property. Any reduction in or change to access to and from the property changes the risk factor.

   
   

5. The Department has two primary objectives in designing highways. These are planning for a reasonable lifetime for the highway as initially constructed, and controlling vehicle conflicts. The latter relates directly to the capacity and safety of the highway. When it designs the highways for this state, the Department relys on principles of traffic engineering to address their safety and operation efficiency. These principles are based upon an understanding of driver behavior. It is better to anticipate future safety and operational conditions and design for them, than to have to address a problem after it occurs.

   
   

6. Driver behavior is an integral part of the information considered by traffic engineers in analyzing safety and operations of the state highway system. Other information considered includes the Department's highway construction and expansion plans. Of great importance in highway design is the need to minimize vehicle conflicts as there is a demonstrated relationship between highway safety and the number of vehicle conflicts on that highway. In designing highways, the Department engineers rely on design manuals which outline the geometric design of the road and provide for such control devices as pavement markings and the like.

   
   

7. Safety is also affected by the various decisions that a driver must make in any given time. The larger number of decisions to be made, the greater the safety problem. In order to reduce the number of conflicts, the Department must either separate the drivers or separate in time the opportunity for conflict. Separating conflicts in time allows the driver to make separate decisions for each conflict, and in so doing, improves the safety of the highway.

   
   

8. Access regulation is an inherent factor in highway operation to insure the safety and efficiency of the highway. Access management includes four basic principles. These are (1) reducing the number of vehicle conflicts on a highway segment; (2) separating conflict points; (3) limiting deceleration in through traffic lanes; and (4) taking turning vehicles from through traffic lanes.

   
   

9. Access connections may be in the form of private driveways and public streets which intersect with a state highway. Management of access through those connections includes the placement and design of those connections while

   maintaining the right of the abutting property owner to access to the State Highway System.

   
   

10. Proposed Rule Chapter 14-96, F.A.C. is the Department's guideline for access management. It addresses the process by which an abutting property owner may secure a permit for a connection to the State Highway System and provides the means for the closure or modification, by the Department, of existing connections. The existing Rule 14-96 was adopted in April, 1990, prior to the amendment of the Access Management Act in 1992. The rule under consideration here is the Department's attempt to amend Rule 14-96 in response to the provisions of the 1992 Act amendments and to treat matters not addressed in the 1990 rule.

    
    

11. The proposed rule in issue here seeks to control a technical operation

    - the management of connections between private driveways and the State Highway System. Inherent therein is the use of numerous terms, the definition of which must be understood if the rule is to be effective and accomplish its purpose.

    
    

12. Proposed Rule 14.96.002(6) defines the relocation, alteration or closure of a connection. An "alteration" of a connection is defined as agency action which would "substantially reduce the width" of a connection. "Relocation" of a connection is described as action to "substantially relocate" a connection. In each case, the terms "substantially reduce the width" and "substantially relocate" have meanings which are generally understood within the transportation engineering community. The former is generally recognized as a narrowing of a connection by one lane or a narrowing which affects the ability of vehicles to make a turning movement through the connection. The latter is generally understood to mean a lateral movement of the connection by one lane width.

    
    

13. These definitions, however, do not necessarily answer the question of whether a change adversely affects the property owner. In most situations, the change is fact specific. What may be a small change may well have a significant impact on a connected property owner. What may be a physically significant change to a connection may yet have little impact on the property owner served by it. Some reductive changes may have a positive and beneficial impact on the operation of the connection.

    
    

14. Petitioner seeks to show that the Department does not provide notice to property owners before it engages in either relocating, modifying, closing or altering a connection. It is true that the Department's current rules regarding access management do not provide for written notice to property owners when minor changes to driveway connections are made. However, the evidence introduced at hearing indicates that as a general practice, the Department does make contact with property owners to discuss such changes before they are made. It is further clear that when driveway connections are changed, the Department issues notices of intended agency action along with a notice of appeal rights, and there is no evidence in the record to indicate that the proposed rule would, in any way, deny a property owner's right to an administrative hearing when a proposed Departmental action would adversely affect those substantial interests.

    
    

15. Another issue in contest is whether a raised median can constitute a traffic control device, and what procedures are required to change median openings. Proposed Rule 14-96.003(6) classifies medians and median openings as traffic control devices or features, and provides that the Department may install, remove or otherwise modify such features to promote traffic safety and efficient traffic operations. The use of raised medians is designed to correct

    safety problems on state roads as they prevent unlimited left turns. Traffic engineering studies have shown that when raised medians are installed on highways, the crash rate goes down and the Department's standard for installing or modifying traffic control features to promote traffic safety and operations is consistent with the Department's other safety and operational enhancement practices, such as separating conflicts. To do so, the Department must have flexibility in the design of its roads.

    
    

16. Since they provide guidance and direction to vehicles travelling on the highway, raised medians are recognized as traffic control devices. The openings in such medians are also considered traffic control devices because they are an integral part of the median design.

    
    

17. Raised medians are safety devices constructed on multi-laned roads. Ordinarily there are two lanes on each side of the median to the edge of the road. Median openings are designed to allow a vehicle proceeding one side of the median to cross to the opposite of the road without proceeding to an intersection. A median opening is not, however, a method of ingress or egress for property abutting the highway. A vehicle exiting from a piece of abutting property can enter onto the highway and proceed in one direction without crossing the median. In order to get to the opposite side of the road, or into the traffic proceeding in the opposite direction, however, a driver must go through a median opening or an intersection on a road divided by a raised median. A median opening does not give access to the private property abutting the highway. Though it facilitates access from the opposite side of the road, it is not a part of the connection as a vehicle passing through a median opening toward property on the opposite side of the highway must traverse two or more lanes of the highway before it can reach the juncture between the property and the highway.

    
    

18. Petitioner attempted to establish that median openings are a part of the connection to a state highway, and there is some evidence to support that position. However, the better weight of the evidence indicates that median openings which are aligned with driveways are generally not considered connections to state highways, but are merely a convenience to the property owner. By themselves, and with the driveway, they permit opportunity to use the driveway but are not considered access features. They do not connect private property to the highway, but merely allow traffic to cross from one side of the highway to the other.

    
    

19. As was stated, a raised median with openings placed at appropriate places thereon, is a safety device promoting the safe and efficient operation of the highway. The design of raised medians and the location of the median openings is determined through a study and evaluation of the needs of that section of the highway, including the need to provide for left turn movements. Highway traffic engineers must have the latitude to design and place medians where they will have the most salutary effect on the traffic on that highway. The ultimate consideration of highway designers is to design a highway meeting the current and anticipated traffic needs in the area in such a way that promotes traffic safety and efficiency on the state highways. The term, "promote", is understood and used by transportation engineers, some of whom may, however, prefer to use the term "improve." In either case, however, whichever term is used in connection with traffic safety and efficiency, they are generally understood as meaning the creation of a driving environment that would minimize or reduce crashes.

20. Whereas those terms are ordinarily used as criteria supporting highway construction and design, they also afford abutting property owners the opportunity to challenge a Department decision to close a median opening on the basis that neither traffic safety nor efficient traffic operations would be promoted by the closure. There are frequently solid bases for maintaining a median opening. Closing it may overload an intersection with traffic that would otherwise turn at the median opening. In addition, certain types of abutting properties, such as high volume or specialized vehicle operations, might justify maintaining a median opening.

    
    

21. The current version of Chapter 14-96 does not require the Department to give notice to abutting property owners when a median opening is to be closed. Proposed Rule 14-96.003(5) also does not specifically provide for a written notice to an abutting property owner. However, it has historically been Department practice to provide such notice to property owners prior to taking closure action, and it is the intention of the Department, as evidenced by the testimony at hearing, to continue the practice of addressing the issue of notice on a case by case basis.

    
    

22. Petitioner seeks to challenge the Department's definition of certain terms used within the proposed rule and outlined in Proposed Rule 14-96.002. One of these is the term, "connection permit" which is defined in subparagraph (5). This provision defines a connection permit as:

    
    

    "a written authorization issued by the Department allowing the initiation of construction of a specifically designed connection and any specific conditions related to the subject connection to the State Highway system at a specific location generating an estimated volume of traffic.

    
    

23. Petitioner alleges this definition allows the Department to expand its control by specifically limiting a volume of traffic through a given connection in violation of the statute which permits limitations on vehicle use only on "non-conforming" access points. The Department rejects this assertion, claiming the phrase was included only to refer to the connection category applied for. The Department's position is a reasonable reading of the language in issue, and it is so found.

    
    

24. Proposed Rule 14-96.002(13), challenged by the Petitioners as being arbitrary, seeks to list those organizations whose publications are considered "generally accepted professional practice", another term challenged by the Petitioner. This rule includes the Department as one of those agencies whose publications fall within that category. Petitioner claims it is inappropriate for the Department to list itself as an authority for determining what constitutes generally accepted professional practice when that is considered as a standard by which the Department will take action. At first glance it would seem that the practice is questionable. However, evidence at the hearing, from experts with national reputations in the fields of traffic engineering and traffic management, indicates that the Florida Department of Transportation is recognized as a national authority in the area of access management, the subject matter with which the rule in question deals. Some Department publications in this area, and that of transportation engineering, have been recognized nationally.

25. It should also be noted that the proposed rule does not prioritize by way of use preference any of the publications listed, nor does it require applicants to use Department publications. By the same token, it does not make Department studies which have been based on Department publications, any more authoritative than those based on publications by others. It would appear, also, that including the Department as an authority in the proposed rule is consistent with "generally accepted professional practice" in transportation engineering, and the evidence also indicates it is generally accepted professional practice in engineering to use local publications in making engineering decisions for the local area. Some experts even suggest it would be improper to disregard local publications and give credence only to national publications.

    
    

26. Another term used by the Department in the Proposed Rule at 14- 96.002(19), and challenged here by Petitioner is "non-restrictive median." Petitioner contends this definition contravenes the Manual and Uniform Traffic Control Devices, (MUTCD), (Rule 14-15.010) as it, allegedly, includes any painted center line as a non-restrictive median. It appears the Department has taken this definition directly from Rule 14-94.002(23). The MUTCD does not refer to "restrictive" as opposed to "non-restrictive" medians. It was the intent of the Department, in drafting this provision, to simplify the application of its spacing standards, and in doing so, has reduced the relevant categories of connections from twelve to six.

    
    

27. "Reasonable access" is defined in Proposed Rule 14-96.002(22) as:

    
    

    ... the minimum number of connections, direct or indirect, necessary to provide safe ingress and egress to the State Highway System based on Section 335.18, Florida Statutes, the Access Management Classification, projected connection and roadway traffic volumes, and the type and intensity of the land use.

    
    

28. Petitioner claims that the use of the word, "indirect" in this definition attempts to nullify the amendments to the Access Management Act, (AMA), which, according to Petitioner, eliminated the authority of the Department to consider either alternate or joint access as reasonable access. The term "reasonable access" in its definition, requires the consideration of varying factors. The Department has a concern for the safety of the traveling public as well as a recognition of the statutory mandate encompassed in the AMA that every owner of property which abuts a road on the State Highway System has a right to reasonable access to the abutting state highway. These countervailing forces have to be maintained in balance.

    
    

29. The determination of what constitutes reasonable access requires the evaluation of several factors pertinent to the specific instance. Factors to be considered include traffic volume, safety, operational efficiency, highway characteristics, growth potential and the impact of the proposed connection on all of the above. Also to be considered is the basic statutory right of a property owner to reasonable access and the impact on him of denial of that access.

    
    

30. No firm and fast formula for determining the reasonableness of access has been devised. Direct access is easy to determine. It is a connection which joins the highway directly. However, there are other means of providing access. These may include access gained by connection to a side street which directly

    connects with the highway, or the use of a joint easement or a service road and are called indirect access. In determining whether indirect access can constitute reasonable access, many factors, including those cited above, must be considered.

    
    

31. Another definition challenged is that of "significant change", as defined in Proposed Rule 14-96.-002(27)as:

    
    

    ... a change in the use of the property, including land, structure or facilities, or an expansion of the size of the structures

    or facilities causing an increase in the trip generation of the property exceeding 25 percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use. If the Department determines that the increased traffic generated by the property does not require modifications to the existing permitted connections, a new permit application shall not be required.

    
    

32. Petitioners claim that this provision tries to modify the definition of significant change as found in the AMA by giving the Department the authority to determine what is a significant change. Comparison to the AMA, (at Section 335.182(3)(b)), Florida Statutes, reveals that the first sentence of the rule definition is identical to the statutory definition of significant change. In the rule, however, the last sentence is added. It does not change the meaning or effect of the statutory definition but merely advises the public that a significant change need not necessarily require a new permit application.

    
    

33. Proposed Rule 14-96.003(4), as it relates to the cost of alterations to a permitted connection, provides that the cost of all construction related to the permit shall be the responsibility of the permittee, with certain exceptions. If an existing permit requires alteration to meet current standards, the alteration will be done at no cost to the permittee, unless the permittee requests modifications beyond those required by the Department. In that case, the change shall be subject to Departmental approval and shall be the responsibility of the permittee.

    
    

34. Petitioner claims this provision conflicts with the AMA where it grants authority to modify existing permitted or grandfathered connections. Petitioner reads into this provision authority which is not there. This provision deals particularly with the cost of any modification or alteration and does not purport to grant to the Department any authority not already within its charter.

    
    

35. Petitioners claim that Proposed Rule 14-96.003(7) exceeds the authority granted to the Department by attempting to place a burden on a connection permit applicant to demonstrate that the proposed connection will create a benefit to the State Highway System. This provision states:

    
    

    If the requirements of rule chapter 14-97 or other adopted Department access management standards cannot be reasonably complied with,

    or if the standards can be met but the applicant desires to submit an alternative plan, the applicant may submit alternative plans which

    will require the approval of the Department's District Secretary or designee. The acceptance of any alternative plans shall be based upon maximum achievement of the purpose of Rule chapter 14-97 F.A.C. and Section 335.181, Florida Statutes. Any alternative access plan proposed under this section will need to provide document- ation, in a traffic study, signed and sealed by a professional engineer registered in the State

    of Florida, how the plan better serves the driving public and not just the applicant's clients or customers. The Department will also consider the transportation conditions stated in Section 335.184(3)(a), Florida Statutes.

    
    

36. This provision provides for an applicant, who can meet the Department's standards but who prefers to submit a non-conforming proposal, to do so. The rule thereafter requires that applicant to show, by use of a professionally accomplished traffic study, where the alternative proposal serves the public better than the conforming plan. Once the applicant identifies the specifics of his alternative plan, the Department and the applicant discuss the alternative and the Department has the opportunity to stipulate any conditions pertinent to the alternative. If there is no agreement, though not specifically provided for in the rule, the Department claims the applicant has an opportunity to challenge any condition felt to be improper. The forum for or method of that challenge is not stipulated.

    
    

37. Petitioner also challenges Proposed Rule 14-96.005(3)(a)&(b) on much the same grounds, but also alleges that these provisions require notice and a new application for any modification to an existing permit even when no significant change occurs. Petitioners claim there is no specific statutory authority for the Department to require this.

    
    

38. Subsection (a) of the proposed rule merely requires, in the event of a significant change, an abutting property owner to seek of the Department a determination as to whether a permit application must be filed and whether changes to existing connections are required. If no significant change exists, no action is required by the property owner, and even should there be a significant change, if no modification to the connection is necessary, no new permit application is required.

    
    

39. Subsection (b) of the proposed rule calls for the Department to issue notice to a property owner when a significant change has occurred and the property owner has not filed a required permit application. In any case, the Department claims, the property owner is granted opportunity to contest either or both the determination of significant change and the need to modify the connection in a hearing conducted under the provisions of Section 120.57(1), Florida Statutes. The Proposed Rule does not so provide, however.

    
    

40. Petitioner contends that Proposed Rule 14-96.007(4)(c) & (d) constitute an unlawful indexing and creates an unlawful presumption of reasonable access in cases of joint or alternate access. To be sure, the proposed rule does establish a presumption that existing access is reasonable but it also provides an applicant seeking additional access with an opportunity to rebut this presumption. The presumption in subsection (d), that existing "grandfathered" access connections are reasonable, carries with it the

    opportunity for the applicant to show that it is not. In short, the presumptions created by the rule are rebuttable.

    
    

41. Petitioner also claims that the requirement in Proposed Rule 14- 96.007(9) for recording of access permit conditions is not supported by any statutory authority. As noted in the rule requirement, the conditions are limited to only those contained in the access permit, and the recording requirement is no more than an effort to insure compliance and avoid the possibility of future misunderstanding.

    
    

42. Another proposed provision in Proposed Rule 14-96.007(10) is contested by Petitioner who alleges there is no statutory authority to attempt to eliminate expansion of highway right of way through the acquisition of abandoned transportation corridors for access to state highways by abutting landowners. The rule in question states that abandoned rail corridors which are adjacent to state highways are considered intervening properties. This applies, however, only to those properties acquired for non-highway uses, not to that acquired for highway expansion.

    
    

43. Petitioner also claims that through Proposed Rule 14-96.011(1)(d) the Department, without statutory authority, tries to make "potential" safety or operational problems grounds for revoking or modifying an existing connection. Section 335.187, Florida Statutes, which governs the revocation or modification of connections does not refer to "potential" problems. The proposed rule allows the Department to close or modify a permitted connection if it determines the connection poses a current or potential safety problem which is documented by an engineering study. There is no quarrel with action to close or modify a connection which is unsafe when that condition can be shown through existing factors. It is not enough to only react to existing problems, however. Department engineers must be able to predict those areas which can reasonably be expected to pose future safety problems. In doing so, they may use information which indicates the potential problem by expected changes to the conditions creating traffic on the highway.

    
    

44. Petitioner contests Proposed Rule 14-96.012(2)(b) and (3)(b)3. Its challenge to the former is based on its contention that the proposed rules ignore the statutory mandate regarding closure or modification of unpermitted connections since they are applicable only to new connections. Petitioner also asserts that the latter unlawfully allows the Department to determine that a property owner's request for hearing was filed for purposes of delay and is, therefore, arbitrary and capricious.

    
    

45. The proposed rule allows the Department to close or modify unpermitted connections for a variety of reasons. Included are: (1) that significant changes have occurred; (2) the safety or operational characteristics of the highway would be negatively impacted; and (3) the connection is not grandfathered. Notwithstanding the rule permits a property owner with an illegal connection to maintain that connection pending hearing or issuance of the permit, the Department may nonetheless close the connection if it can determine the owner's actions are for the purpose of delaying the Department's exercise of its jurisdiction.

    
    

46. Further, though the Proposed Rule 14-96.012(2)(b) refers to conditions which "jeopardize the public safety", the Department considers that language to be operationally similar to the "current or potential safety problem" standard, as used elsewhere in the rule chapter, and it contends it does not intend to

    treat the two types of connections differently in regard to modifications or closures based on safety considerations.

    
    

47. Petitioner also contends that the Department has no authority to modify existing permitted or unpermitted legal connections during construction projects as is provided for in Proposed Rule 14-96.015. While changes may be made, the rule does not permit changes to be made indiscriminately. Modifications may be made consistent with the Department's access management standards as outlined in Rule 14-96 and with the Standard Index. Further, the Proposed Rule provides for property owners to be given notice of proposed Departmental actions, except for eminent domain situations, which would afford the property owner the opportunity to challenge the propriety or necessity of the proposed modification. Notice is currently given in these situations even though the current rule does not require it.

    
    

    CONCLUSIONS OF LAW

    
    

48. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

49. Petitioner claims that enumerated sections of the Department's proposed amendments to Rule Chapter 14-96, governing state highway system connection permits are invalid exercises of delegated legislative authority or are otherwise invalid.

    
    

50. The burden of proof in this case rests upon the Petitioner to show, by a preponderance of the evidence, that the challenged rules provisions are invalid exercises of delegated legislative authority, Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1st DCA 1987), cert. denied, 376 So.2d 74 (Fla. 1979).

    
    

51. Much of the fundamental case law regarding rule challenges is found in the Agrico case cited above which set the standard for evaluation. In that case, the court required the challenger to show that the requirements of the rule are not appropriate to the ends specified in the legislative act, that the rule requirements are not reasonably related to the purpose of the enabling legislation; or that the rule, or its requirements, are arbitrary and capricious. Both existing and proposed rules are to be tested against the criteria set forth in Agrico as well as the statute.

    
    

52. Section 120.52(8), Florida Statutes, defines "invalid exercise of delegated legislative authority" as:

    
    

    ... action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    1. The agency has materially failed to follow the applicable rulemaking procedures as set forth in s. 120.54;

    2. The agency has exceeded its grant of rule- making authority, citation to which is required by s. 120.54(7);

    3. The rule enlarges, modifies, or contravenes the specific provisions of the law implemented,

       citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

       
       

53. The law is well settled on the definition of the terms arbitrary and capricious. A rule is arbitrary and capricious if it is not supported by fact or logic, if it was adopted without thought or reason, or it if is otherwise not based on competent, substantial evidence, Humana, Inc. v. Department of Health and Rehabilitative services, 469 So.2d 889, 890 (Fla. 1st DCA 1985). Specifically, a "capricious" action is one taken without thought or reason, or which is taken irrationally. An "arbitrary" action is one that is not supported by facts or logic or is despotic. (See Agrico, supra.) The burden is placed on the Petitioner to demonstrate that a rule is arbitrary or capricious, Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991).

    
    

54. The burden of showing that an agency action is an invalid exercise of delegated legislative authority is a difficult one. The courts recognize that agencies are given wide discretion in the exercise of their lawful rulemaking authority, and once an agency has construed a statute, that construction is given great weight and is not to be overturned unless clearly erroneous, Austin

    v. Department of Health and Rehabilitative Services, 495 So.2d 777, 779 (Fla 1st DCA 1986),

    
    

55. On the other hand, however, agencies cannot, by administrative rule, enlarge, modify, or contravene the plain meaning of a statute, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65 (Fla. 1st DCA 1984), Campus Communications v. Department of Revenue, 374 So.2d 1290, 1295 (Fla. 1985); and State, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980).

    
    

56. Petitioner asserts that the Department claims, in its Specific Authority cited in its proposed Rule Chapter, that such authority is found in Chapters 334.044(2); 335.182(3); 335.183; and 335.184, Florida Statutes, but that "only Section 334.044(2) appears applicable." This latter mentioned provision gives the Department the general power:

    
    

    (2) To adopt rules, procedures, and standards for the conduct of its business operations and the implementation of any provision of law for which the department is responsible.

    
    

57. To be sure, the above-cited provision gives the Department clear authority to implement reasonable rules governing those areas for which it is responsible. Section 335.182(3), a portion of the "definitions" section of the statute, defines the terms, "connection" and "significant change" which, it can be easily seen, are important considerations in the provisions under challenge. Section 335.183 gives the Department authority to impose a permit fee, also pertinent to the issues in controversy. Section 335.184 provides the authority and requirement for the application process, and requires that all permit applications shall be reviewed in conformity with Section 120.60. This latter provision, though referring specifically to licence application, outlines a comprehensive procedure for the processing of applications which contains built- in requirements for processing times, notices, and administrative hearings, and

    specifically requires that the process be administered "... with due regard to the rights and privileges of all affected parties...." Clearly, the Department's rule is predicated, at least in part, upon this legislation.

    
    

58. Petitioner also contends, in Paragraph 10D of its Petition, that numerous definitions contained in the proposed rule are contrary to statutory definitions applicable to vehicular access to connections to the state highways. Specifically, Petitioner asserts that Proposed Rule 14-96.002(3) attempts to modify the definition of "connection" as it appears in Section 335.182(3)(a) of the statute. Therein, connection is defined as "... driveways, streets, turnouts, or other means of providing for the right of reasonable access to or from the State Highway System" whereas the rule definition, while quoting the above provision, adds, "Traffic control features and devices in the Department's right of way are not part of the connection."

    
    

59. A review of the legislative history of the State Highway System Access Management Act, enacted by the Florida Legislature in 1992, clearly indicates that that body did not intend for any type of traffic control device, including median openings, to be a part of a connection. That being established, the Rule provision does no more than clarify and confirm the position of the Legislature. No modification was intended thereby, nor can one reasonably be inferred.

    
    

60. Petitioner also asserts that Proposed Rule 14-96.002(5) contravenes the statutory definition of "significant change" where it attempts to allow the Department to limit a volume of traffic through a permitted connection. Petitioner claims the legislation, (at Sections 335.182(3)(b) and 335.187(3)), provides that limitations on vehicular use may be placed only on "nonconforming" access permits.

    
    

61. The rule provision, dealing with the definition of a "connection permit", defines this as:

    
    

    ... a written authorization issued by the Department allowing for the initiation of construction of a specifically designed connection and any specific conditions related to the subject connection to the State Highway System at a specific location generating an estimated volume of traffic.

    
    

62. Section 335.182(3), Florida Statutes, defines a significant change as:

    
    

    ... a change in the use of the property, including land, structure or facilities, or an expansion of the size of the structures or facilities causing an increase in the trip generation of the property exceeding 25

    percent more trip generation (either peak hour or daily) and exceeding 100 vehicles per day more than the existing use.

    
    

63. Section 335.187(3), Florida Statutes, provides:

    
    

    The department may issue a nonconforming access permit after finding that to deny an access permit would leave the property without a reasonable means of access to the State Highway

    System. The department may specify limits on the maximum vehicular use of the connection and may be conditioned on the availability of future alternative means of access for which access permits can be obtained.

    
    

64. As defined in the Rule, a connection permit does not limit the volume of traffic through a permitted connection. It merely provides for a permit to be issued for a specific location under such specific conditions that may be relevant to that location. As such, it does not contravene the enabling legislation.

    
    

65. Petitioner claims that Proposed Rule 14-96.002(6) defining the term "Connection Relocation, Alteration or Closure", allows the Department to arbitrarily take those actions without prior compliance with Section 335.187, Florida Statutes. This statutory provision deals with unpermitted connections, existing access permits, nonconforming permits, and modification and revocation of permits.

    
    

66. The proposed rule provision allows the Department to substantially reduce the width of a connection or prohibit right turn entries or exits from a connection, to prohibit either entry or exit through a connection, or to substantially move a connection laterally or relocate it to a service road which is connected to a state highway. This provision does no more than define actions provided for in the statute. No additional or different requirements beyond those in the statute are imposed, and the statute provides for due process to be provided the party holding or seeking access. Most significantly, however, there is nothing in the rule provision complained of which in any way defeats or dilutes the guarantee to reasonable access granted a property owner by subsection (5) of the statute in issue.

    
    

67. The Department has, at Proposed Rule 14-96.002(7), defined a "Controlled Access Facility" as: "... a transportation facility to which access is regulated through the use of a permitting process by the Department." Petitioner contends that this definition attempts to modify the definition of such a facility contained in the statute at Section 334.03(7), Florida Statutes. At that section, a controlled access facility is defined as:

    
    

    ... a street or highway to which the right of access is highly regulated by the government entity having jurisdiction over the facility

    in order to maximize the operational efficiency and safety of the high volume through traffic utilizing the facility. Owners or occupants

    of abutting lands and other persons have a right of access to or from such facility at such points only and in such manner as may be determined by the governmental entity.

    
    

68. Section 338.01,Florida Statutes, includes in the definition of the Florida Intrastate Highway System the following primary components:

    
    

    1. Interstate highways

    2. The Florida Turnpike System

    3. Interregional and intercity limited access facilities

    4. Existing interregional and intercity arterial

       highways previously upgraded or upgraded in the future to controlled access facility standards.

    5. New limited access facilities necessary to complete a balanced statewide system.

       
       

69. The Department's definition of controlled access facility is in no way inconsistent with the statutory definition found in Section 334.03. The Department has the jurisdiction over the facility for the specified purpose, inter alia, of maximizing safety and the operational efficiency of the highways. The statute specifically recognizes the Department's authority to regulate the facility (by rule), and, as well, recognizes the Department's authority to regulate access to the facility by the owners and occupants of abutting lands. As such, the Department's rule definition does not modify but supports and is entirely consistent with the statutory definition.

    
    

70. Petitioner claims that Proposed Rule 14-96.002(10), which in defining a "Directional Median Opening" inserts the term "or the access connection", is an attempt by the Department to eliminate such an opening as a connection to the state highway. Section 335.182(3)(a), Florida Statutes, defines a connection as: "... driveways, streets, turnouts, or other means of providing for the right of reasonable access to or from the State Highway System." To succeed in its claim, Petitioner would have to first establish that a median opening, directional or otherwise, is or is part of a "connection." This it has failed to do. To the contrary, the greater weight of the evidence demonstrates that a median opening, when compared with other "connections" as noted in the statute, is neither a connection nor a part of a connection but is no more than a traffic control device with use limited to those highways utilizing medians. The same conclusion is drawn with regard to Petitioner's challenge to Rule 14-96.002(12) relating to "Full Median Openings."

    
    

71. Petitioner objects to the Department's inclusion of its own publications in that portion of Proposed Rule 14-96.002(13) which seeks to define the term "Generally Accepted Professional Practice" as it relates to engineering and planning knowledge and practice applied to access management. The Department, it has been found, is considered to be one of the leaders in access management in this country. Well qualified and nationally recognized experts in the field so testified. Nothing has been shown to indicate that the inclusion of the Department in this category would have any adverse effect on abutting landowners or occupiers. The Department has not ranked its publications above any other recognized authority. No indication has been given that the failure to use Departmental authorities in support of an application or in the design of a facility would hinder the applicant's chance for award, especially if other recognized authorities were cited. Accordingly, Petitioner has failed to establish, as it alleged, that the inclusion of itself as an authority in a Departmental rule is the power grab designed "to bestow arbitrary unbridled authority on the Department.

    
    

72. Another issue raised by Petitioner is whether Proposed Rule 14-96- 002(17), which defines "limited access facility" is improper because the definition of that item in the statute may not be amended. The proposed rule defines a "limited access facility" as:

    
    

    "... a street of highway established as a limited access facility pursuant to Section 338.01, Florida Statutes, and meeting the definition of Section 334.03(13), Florida Statutes, including interchange areas and

    other facilities within the limited access right of way."

    
    

73. Section 334.03(13), Florida Statutes, defines a "limited access facility" as:

    
    

    ... a street or highway especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be facilities from which trucks, buses, and other commercial vehicles are excluded; or they may be facilities open to use by all customary forms of street and highway traffic.

    
    

74. Petitioner claims that the proposed rule definition is contrary to the statutory definition. In actuality, the proposed rule definition does no more than incorporate by reference the statutory definition and make clear that such definition includes all facilities within the right of way. This cannot, by any stretch of the imagination, be considered as modification or refinement. If anything, it is clarification, but it neither adds to nor detracts from the statutory definition.

    
    

75. Petitioner also asserts that Proposed Rule 14-96.002(19) is inappropriate because, by indicating that any painted center line on an undivided highway constitutes a non-restrictive median, it contravenes the definition of a median contained in Rule 14-15,010, F.A.C. The instant proposed rule provides that a "non-restrictive median" is:

    
    

    ... a median or painted centerline which does not provide a physical barrier between center traffic turning lanes or traffic lanes traveling in opposite directions. This includes highways with continuous center turn lanes and undivided highways.

    
    

76. The pending proposed rule definition is no more than a recitation of the identical definition which appears in existing Rule 14-97. It does not appear to conflict with the Manual on Uniform Traffic Control Devices, but even if it did, that would be no basis for challenge.

    
    

77. Petitioner complains that Proposed Rule 14-96.002(22), the definition of "reasonable access", which includes the word "indirect", is an unlawful attempt by the Department to nullify the amendments to the AMA which eliminated its authority to consider either alternate or joint access as reasonable. The proposed language indicates that:

    
    

    ... the minimum number of connections, direct or indirect, necessary to provide safe ingress and egress to the State Highway System, based on Section 335.18, Florida Statutes, the Access Management Classification, projected connection and roadway traffic volumes, and the type and intensity of the land use.

78. There can be no quarrel with the concept that every abutting land owner has a right to reasonable access to the abutting state highway. Where Petitioner and the Department disagree is in that Petitioner seeks to have "reasonableness" equate with "direct". The primary consideration must be the safe and efficient operation of the state highways. Consistent with that may be the requirement for access to a particular highway at a particular point to be indirect. If indirect access can be shown to be safer than direct access in a given situation, and that indirect access is reasonable, then the statutory guarantee is met, especially when the statute itself gives the Department the authority to require a property to access a state highway from a service road. Petitioner's argument here is without merit. See Palm Beach County v. Tessler,

    538 So.2d 846 (Fla. 1989); Weir v. Palm Beach County, 85 So.2d 865 (Fla. 1956).

    
    

79. Petitioner argues that Proposed Rule 14-96.002(27), the definition of "significant change", modifies the statutory definition of that term by adding a sentence which attempts to give the Department unilateral authority to determine when such a change has occurred. The last sentence of that proposed rule reads:

    
    

    If the Department determines that the increased traffic generated by the property does not require modifications to the existing permitted connections, a new permit application shall not be required."

    
    

80. The first sentence of the definition is a direct quote from the statute. The inclusion of the remaining sentence, indicating that under certain conditions a new permit application will not be required, requires nothing further from an applicant or land owner. Any unilateral determination made in this case by the Department will serve only to relieve the landowner of a task which might otherwise be required. This does not constitute an impermissible extension of the Department's authority and does not render the proposed provision invalid.

    
    

81. The last definition of which Petitioner complains is that of "State Highway System", found in Proposed Rule 14-96.002(28). Petitioner urges that the rule definition

    
    

    ... is in direct contravention of Section 338.001, which provides for controlled access highways only on the Florida Intrastate Highway System, and ignores Section 334.03(25) which is the legal

    and proper definition of the [system].

    
    

82. The proposed rule defines the State Highway System (SHS) as:

    
    

    ... the network of limited access and controlled access highways that have been functionally classified and which are under the jurisdiction of the State of Florida as defined in Section 334.03(25), Florida Statutes.

    
    

83. Section 334.03(25), defines the State Highway System as:

    
    

    ... the following, which shall be facilities to which access is regulated:

    1. The interstate system;

    2. All rural arterial routes and their existing extensions into and through urban areas"

    3. All urban principal arterial routes, and

    4. The urban minor arterial mileage on the existing State Highway System as of July 1, 1987, plus additional mileage [provided for].

       
       

84. A review of the proposed rule definition, taken in its simplest context, indicates that it is no more than an all inclusive definition of those highways which have been classified and are under the jurisdiction of the Department. Controlled access facilities are included within the Intrastate Highway System. Proper safeguards are provided for in Section 335.184(3), Florida Statutes, which are included in Proposed Rule 14-96.007(4), F.A.C. No legitimate basis for challenge exists in this particular.

    
    

85. Racetrac also asserts that Proposed Rule 14-96.003(4)(b), which provides for certain alterations or relocation of existing permitted connections at no cost to the permittee, conflicts with Section 335.187, Florida Statutes. Petitioner's claim is not accurate wherein it alleges a modification may be required by the Department if a significant change occurs in the "use, design or traffic flow of the connection." A careful reading of the pertinent portion of the rule indicates that existing permitted connections which are impacted by the Department's current construction activities and which, in order to meet the Department's current standards, must be modified in some way, will be modified as necessary at no cost to the permittee. Other changes requested by the permittee shall be paid for by the permittee. This provision does not extend the Department's authority nor does it conflict with the existing statute. This claim is without merit.

    
    

86. Also complained of by Petitioner is Proposed Rule 14-96.003(5). Petitioner claims this provision conflicts with the definition of a "connection" as contained in Section 335.182(3)(a), Florida Statutes. Petitioner also contends it attempts to extend Departmental authority for revocation, alteration or closure of connections beyond that allowed by Section 335.187, Florida Statutes, and attempts to circumvent the law of eminent domain and the Florida Constitution.

    
    

87. This is another way of urging, as Petitioner has done consistently, that a median opening is a part of a connection. This issue previously has been resolved in favor of the Department's position and will not again be addressed here.

    
    

88. Petitioner asserts that Proposed Rule 14-95.003(7) attempts to place a burden on a connection permit applicant to demonstrate that the proposed connection creates a benefit to the State Highway System. To the contrary, what this provision does is provide to the applicant, whose proposed connection does not meet the standards of the AMA, a second opportunity for approval if the applicant can show that the proposed alternative is better than the Department's standard. Rather than take away from an applicant, the most reasonable evaluation of this provision is that it provides a bonus of opportunity to an applicant. If that requires a showing of benefit to the public and not just the property owner, this is not unreasonable, and it is certainly not unlawful.

    
    

89. Proposed Rule 14-96.005(3)(a) and (b) is challenged because, Petitioner claims, it places the burden of notification on a permittee in the event a nonsignificant modification to existing improvements is made. In actuality, the rule reads:

    1. Significant Change in Land Use ....

       Where such additional traffic is projected due

       to expansion or redevelopment, the property owner shall contact the Department to determine if a new permit application and modifications to existing connections will be required.

       and

    2. Failure to contact the Department to determine the need for connection modifications

       or to apply for a new permit for such modifications prior to initiation of property improvements, land use changes, or traffic flow alteration actions, defined as "Significant Change" in [the statute], may result in notification to the property owner

       of intent to revoke or modify the existing permit and closure of the connection to the property as specified in Rule Section 14-96.011(2).

       
       

90. Petitioner claims there is no statutory authority for this requirement. Whereas Petitioner contends the notice is required "each time a small modification to his existing improvements were made even though it was clear that no significant change had occurred", a reading of the proposal clearly indicates that notice is required only where a significant change in land use, as defined by the statute in Section 335.182(3)(b), Florida Statutes, is projected. The challenge is without merit and is rejected.

    
    

91. Another attempt to construe median openings as connections is found in Petitioner's challenge to Proposed Rule 14-96.005(4). As was stated before, this issue has been resolved previously in this Final Order and will not again be treated regardless of what clothing it wears.

    
    

92. Petitioner contends that Proposed Rule 14-96.-007(4)(c) and (d) is either incorrectly indexed or indexed in a duplicative manner. Petitioner claims the presumption that joint or alternative access is reasonable access contained in these provisions is an attempt to shift the burden of proof to the landowners, unauthorized by statute. The rule states that for permitted driveway connections where one or more connections to a state highway have previously been approved and the applicant seeks a permit for additional or alternative connection, the previously approved connections are presumed to provide reasonable access to a state highway unless the property owner shows:

    (1) there has been a major unforeseeable change in the trip generation reflected in the original application, or (2) circumstances relating to traffic safety and efficiency have arisen which were not reasonably foreseeable and which prevent the connection from providing reasonable access.

    
    

93. The law is quite clear that an agency of the executive branch has no authority to formulate an evidentiary presumption, B.R. and W.C. v. Department of Health and Rehabilitative Services, 558 S.2d 1027 (Fla. 2nd DCA 1989). Here, that is exactly the case. By rule, existing access is presumed reasonable, but that same rule provides the applicant with an opportunity to show why the Department should gtrant the permit requested.

    
    

94. Section 335.184(3), Florida Statutes, provides that a property owner will be granted access to an abutting state highway unless the permitting of such access would jeopardize the safety of the public or have a negative impact on the operational characteristics of the highway. The Department is, therein,

    granted authority to adopt standards and criteria by rule, and it is given guidance in the permitting determination by a subsequent provision of the statute which states that the Department may, but is not limited to, consider certain criteria outlined therein. Subsections 335.184(3)(b), (c), and (d), Florida Statutes, provide for notice of denial and a right to Section 120.57(1) Florida Statutes, hearing at which the applicant, by law, has the burden to establish his right to the permit.

    
    

95. Conseqiently, it is seen that while the terminology of the proposed rule section in question here uses the unlawful term, "presumption", that presumption does no more than place the burden to establish the propriety of the requested permit on the applicant. This is where the burden is placed by the statute. While the terminology used is be unlawful and must be changed, the intent of the provision is not.

    
    

96. As Petitioner sees it, Proposed Rule 14-96.007(9) attempts to require the recordation of permit conditions without statutory authority for the requirement. Permit conditions subject to reasonable conditions are authorized by the provisions of Section 335.185(1), Florida Statutes. The Department contends that it has required the recordation of permit conditions so that there will be assurance the conditions will be abided by. This does not necessarily follow. However, recordation does provide notice to the general public and to subsequent purchasers of the property, and this, itself, constitutes a reasonable basis for requirement. An access permit is not a license, as is claimed by Petitioner. It is more on the nature of a revocable easement, and easements are not proscribed by the recording statutes of this state.

    
    

97. Petitioner next contends that Proposed Rule 14-96.007(10), which allows the Department to revoke existing access across an abandoned rail or non- highway vehicular use corridor when such access interferes with the safe or efficient operation of the corridor or the state highway, is not based on any statutory authority. The Department has a legislative mandate to take such action as is reasonably required to promote the safety and operating efficiency of the state highway system. (Section 335.181, Florida Statutes) The Department's stipulated condition for action is consistent with that mandate and the reference to other sections of the Rule for the revocation process is certainly not irrelevant.

    
    

98. Petitioner also contends that Proposed Rule 14-96.009, which provides for joint and cross access is prohibited by Section 335.181(2)(a), Florida Statutes. This statutory provision states the policy of the legislature to afford every owner of property which abuts the State Highway System a right to reasonable access to the abutting state highway. That same sentence, however, expresses the caveat that the owner does not have unregulated access to such highway. The proposed rule authorizes the approval of nonconforming connections in certain circumstances and under limiting conditions where, among other criteria, either a joint use or cross access connection with a neighbor is legally available. Approval of nonconforming permits is specifically authorized by Section 335.187(3), Florida Statutes where it finds that to deny an access permit would leave the property without a reasonable means of access to the State Highway System. This permit may be conditioned upon the availability of permittable future means of access.

    
    

99. The Department contends that the provision for joint access contemplates the property owner voluntarily entering into a joint access easement. This is not what the rule states, however, and it is vague and

    subject to alternative interpretations. As such, it is defective, notwithstanding the provision elsewhere in the rule for a Section 120.57 hearing.

    
    

100. A question is raised by Petitioner, in its challenge to Proposed Rule 14-96.011(1)(d), concerning the provision that a "potential" safety or operational problem will be grounds for a revocation or modification of an existing connection or connection permit. Section 335.187, Florida Statutes, provides for requiring a permit for an unpermitted connection if the Department determines a significant change in the use, design, or traffic flow of the connection occurs. Permitted connections may be modified or revoked only after written notification and hearing, and only if it is determined there is a significant change, as above. At no place in this section is reference made to potential safety or operational problems.

     
     

101. Again, in the resolution of this problem, however, one must return to the basic statutory mandate as found in Section 335.181, Florida Statutes, which recognizes the need for regulation of access to the State Highway System. In promulgating this provision, which calls for the recognition of potential safety and operational problems, the Department has properly provided for planning in advance to avoid rather than confront problems. As was noted previously, the agency is granted wide latitude in rule promulgation, and agency rules will not be overturned unless a clear showing is made of the impropriety or illegality of the rule. Neither has been shown here.

     
     

102. A challenge is laid to Proposed Rule 14-96.012 in its entirety on the basis that it ignores the "clear mandate" of Section 355.187, Florida Statutes, regarding the closure and modification of unpermitted connections. The rule provides for the closure or modification of grandfathered connections if necessary because the connection would jeopardize public safety or have a negative impact on the operational characteristics of the highway. Closure or modification will not be effected without cause and without the property owner being afforded an opportunity to meet on site with a Department representative. In any case, the Department is required to consider the matters submitted by the owner before taking action, and it must follow a process consistent with the provisions of the rule and Chapter 120, Florida Statutes. This provision is neither inappropriate nor illegal.

     
     

103. Another issue raised by Petitioner relates to the provision in Proposed Rule 14-96.012(3)(b)3 which permits the Department to block off a connection which constitutes a safety or operational problem to the State Highway System, or in a case where it can be shown that either an application or a request for hearing has been filed by an owner for the purpose of delay or to prevent the Department from exercising jurisdiction over a connection. There can be little reasonable quarrel with closing a connection which constitutes a legitimate safety or operational hazard. However, notwithstanding the rule provision for reasonable or written notice prior to the installation of barriers, the use of that sanction, where an agency official interprets the legality of an owner's legitimate right to apply for a permit or request a hearing, is arbitrary and cannot be sustained. Other avenues exist for the Department to effect its program. Summary erection of barriers is not an appropriate action.

     
     

104. As the last of its specific objections, Petitioner claims that Proposed Rule 14-96.015 unlawfully attempts to authorize the Department to modify existing legal connections, permitted or not, during a Department construction project. A reading of the rule shows that the Department will be

     responsible for the cost of any modifications or alterations which are necessary to its project, but that the construction of new, permitted connection points will be at the owners expense. This is not at all unreasonable. In addition, closure or substantial relocation of a connection will be subject to a Section

     120 hearing if there is to be no Departmental acquisition of the owner's property. If there is to be acquisition, then the eminent domain process will apply, and included therein is opportunity for protest of and compensation for a connection closure or alteration, if the owner can establish that action constitutes a taking. While this may be hard to do, the test of legality is not ease of accomplishment.

     
     

105. Taken together, and with the exception of the specific provisions identified as deficient, the Department's rule is well within the parameters defined by the legislature for Departmental action. There is no legitimate challenge to the agency's rulemaking procedures. For the most part, and except as specifically noted, the proposed rule is not vague, does not fail to establish adequate standards for agency decision, and does not vest unbridled discretion in the agency. Again, except as noted, the proposed rule is neither arbitrary nor capricious.

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

ORDERED that except for the following provisions, Petitioner's challenge to the Department of Transportation's Proposed Rule 14-96 is dismissed. The challenges to so much of Proposed Rules (1) 14-96.009, which is found to be defectively vague; (2), 14-96.007(4)(d), which establishes an unlawful presumption of reasonable access, and (3) so much of 14-96.012(3)(b)3, which allows blocking of a connection where a Department official determines that an application or request for hearing is filed for purpose of delay, which is found to be arbitrary agency action, are sustained

RECOMMENDED this 27th day of April, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1995.

APPENDIX TO FINAL ORDER

The following constitutes my specific rulings pursuant to

Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

Many of Petitioner's Proposed Findings of Fact are couched in the form of restatements of the testimony of witnesses. This is not a proper Finding of Fact and they have been so noted.

1. Accepted.

2. A restatement of testimony. - Not a Finding of Fact.

3. & 4. Accepted.

   1. A restatement of testimony.

   2. First sentence accepted. Balance a restatement of testimony..

   3. First sentence a restatement of testimony. Balance accepted.

   4. A restatement of testimony.

   5. First sentence accepted. Balance a restatement of testimony.

   6. First sentence a restatement of testimony. Balance accepted.

1. & 12. A restatement of testimony.

   1. First sentence a restatement of testimony. Balance accepted.

   2. & 15. Restatements of testimony.

16. & 17. Accepted.

18. & 19. Restatements of testimony.

FOR THE RESPONDENT:

1. & 2. Accepted.

3. - 5. Accepted.

6. & 7. Accepted.

1. - 10. Accepted.

   1. Accepted.

   2. Not a Finding of fact but a comment on the evidence.

COPIES FURNISHED:

J. Victor Barrios, Esquire Ellen Chadwell, Esquire Beck, Spalla & Barrios, P.A. 1026 East Park Avenue Tallahassee, Florida 32301

Pamela S. Leslie, Esquire Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure, Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, (or when appropriate, a certificate of indigence), with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the Order to be reviewed.

Docket for Case No: 94-006741RP

Orders for Case No: 94-006741RP